Top SMS Text Message Marketing and Compliance Tips

by Robert Wilson | Last updated Jan-01-19

Top SMS Text Message Marketing and Compliance Tips

SMS text message marketing has grown by leaps and bounds over the past few years.

It is a popular form of marketing that can help generate more personal injury leads for attorneys, increase retail sales for merchants, and improve brand exposure for growing companies. 

Increasingly, big brand companies have been jumping on the SMS text marketing bandwagon.

Now, let’s get into it…

1. What Is SMS Text Message Marketing?
   

   Technically speaking, SMS is an acronym for Short Message Service. This is the protocol used by mobile networks that permits mobile carriers to send and receive text message communications. The marketing aspect arises when retailers, restaurants, law firms and other businesses send text messages to prospect’s and customer’s mobile phones. What are they sending? Well, surely, you’ve received: a promotion a coupon a confirmation appointment an auto-response message after submitting info to a landing page a prompt to send a code to enter a contest or sweepstakes In other words, businesses and attorneys are marketing to you via your cell phone! Now, this type of marketing communications should not be confused with MMS, which means Multimedia Messaging Service. This protocol is an extension of SMS that allows images and video to be delivered via text messages. Pretty cool, right? And MMS is growing.  But it does cost more because of the increased resources required. Yet, just like video has been exploding in popularity, you can expect the same with MMS Marketing. Examples of SMS and MMS messages are below. Example of SMS text auto response message for personal injury leads. Example of MMS text auto response message for personal injury leads. So, if SMS marketing has caught your attention now, you’ll want to consider implementing the next phase of this trend, which is MMS Text Message Marketing. Okay, let’s get back to traditional text messaging marketing. By now, you may be asking yourself, “Why is this marketing platform getting so much hype?” Well, check out these impressive statistics on SMS text message marketing…I’m sure you will find your answers. Text messages have the highest open rates among digital marketing platforms, between 82% and 98%. The average response time for a text message is 90-seconds, compared to 90 minutes for email. 62% of the population who own cell phones check them immediately after they wake up. 92% of the U.S owns a mobile phone that can receive text messages, while 68% of those own a smartphone. SMS messaging is the most widely used service for data worldwide. The #1 ranked message opened by mobile phone users is text messages. Text messaging generates six to eight times more consumer engagement compared to email marketing. 48% of Internet users prefer loyalty-based messages through text. Among the most important factors to consider is the degree that consumers want vendors to use this medium.  For example, over 50% prefer support communication through text relative to other platforms. Although texts are personal in nature, don’t be shy boys and girls.  It’s time for you to start considering this medium. Because ultimately, texts have immediate and direct delivery that allow consumers to react.  That means more sales. Among the most beneficial methods of mobile marketing is a call to action to visit your website or store. This effectuates consumer engagement and exposure to your brand, product, and services. But all that said, don’t be irresponsible with this digital marketing medium. There are government agency regulations and industry association guidelines that should be followed, such as the following. The Telephone Consumer Protection Act. The TCPA originated from the FCC.  Some of the requirements include obtaining express consent to send texts and sending between 8 a.m. and 9 p.m. Cellular Telecommunications Industry Association. The CTIA has guidelines that may not have the force of law, but violations may result in carriers shutting down your service. Mobile Marketing Association. The MMA has no force of law and a violation may not have an immediate detrimental impact. Nonetheless, following these guidelines are considered best practices. Your prospects and clients will appreciate it. We will cover relevant laws, guidelines, and best practices for attorneys and businesses after we review the best strategies for SMS text marketing. But before we jump to the next section, let’s leave off with two sets of quotes I’d like you to read about how personal and unique texts are: According to Luke Wilson of EZ Texting, “Because text messages appear on people’s mobile phones, they feel more personal than other kinds of marketing.” Additionally, “Texting allows businesses to do many of the things that traditional media does … without having to invest in extra hardware, labor, printing or media buys.” And, Yoni Ben-Yehuda, CMO of Web design firm Blue Fountain Media mentioned, “Most users are attached to their mobile phones and always in arm’s reach of the device, making it a premium platform to target a unique audience if they’ve provided you with their phone number as a communication channel. Depending on the content and the unique needs of the user, text message marketing is often a good channel to focus on.”

2. What Are The Best Marketing Strategies For SMS Text Messaging?
   

   Like any digital marketing campaign, you’ll want to know the top strategies to achieve success. Take a look at the following methods other law firms, retailers, and big brand companies have used. Get to the Point Ever hear of the expression, “less is more”? Well, this is the time to apply that it. Generally, you have 160 characters to get your message across.  So, be direct.  You will want to write clear messages absent abbreviations, don’t use too many all caps, and write in simple English. Your sentences should be short, too.  This is an effective means of getting your message across. As for frequency, 4-5 messages per month that gradually progresses to 10 per month is ideal, according to Upland Software.  Make sure you review unsubscribes, since over doing this could cause churn. Finally, be clear and fully-informative. If you’re promoting a sale or product with urgency, let the consumer know the time and dates.  Havin a sale is great, but don’t forget to include the time, day, and expiration. People are more likely to react if they are fully informed and incentivized. Include Call to Action Prompts Always make your message actionable. SMS text message marketing is a form of direct response marketing, so take advantage of it. You’ll want to write a message that includes “Call Now,” “Buy,” “Purchase,” or “Avail.”  Some businesses include a landing page and phone number. Others request their users to reply with a code, like ATTORNEY to qualify for a product that is only $10 for the next 6 hours. Timing and Urgency is Everything One of the best practices of call to actions is to include urgency. Engagement increases when immediacy is instilled, so use that to your advantage and send SMS text messages at the most responsive time. After all, most people open their texts well within the first two-minutes of receipt, which blows away the average time for emails that clock in at 90-minutes. So, tempt the crowd with deadlines like “today only,” “expires soon,” or “valid till.” Direct responses from SMS text users are most effective when done on a last-minute basis.  For example, if you’ve got an event starting on a Saturday night, send the invite Saturday early afternoon. They can also be highly effective for auto-responses.  When a prospective attorney submits information on our personal injury leads page regarding personal injury lead generation, they may receive a confirmation like, “OnPointLegalLeads.com: You’ve requested info on Personal Injury Auto Accident Leads. We’ll call momentarily or call 972-584-0204. Msg&Rates apply. STOP to opt-out.” But don’t forget that early morning or late-night texts are not for business. Acceptable time frames are between 8 am and 9 pm, and weekends and holidays can generate high response rates. Mondays are the worst times to send texts, according to Mobile Marketer. Combine Opt-In Marketing Channels Your text message marketing campaigns shouldn’t be one-offs. Significantly, both contemporary and traditional marketing generate the best results when multiple channels are pursued. So, if you’re performing social media, pay-per-click, search, push and/or direct mail, utilize all of these to emphasize similar messages and reinforce relationships. The effect often is an increase in brand awareness, search engine rankings, and overall exposure to your product or service. If you’re an accident injury law firm, you may want to send text and email notifications on clients’ birthdays and when confirming appointments.  If you’re a retailer, you may do the same These also serve as opportunities to obtain the written consent needed to expand your base. Track Open and Click Through Rates Here we go again. You get data like open rates and click through rates from email marketing, and you can get it from your SMS campaigns too. And the data can be highly valuable. 19 percent of users click on links within a text message, compared to under 5 percent for emails.  It’s higher than any other marketing platform! That adds up to valuable insight, which can be used when segmenting your database (spoiler alert…take a look below). Ultimately, segmenting allows higher response rates and conversion rates.  And, it reduces unsubcribes that can be fatal to your list. Segment Your Database Each customer is different. Take advantage of this and segment your database. So, just like email campaigns, you’ll want to personalize your message and promotions based upon past purchases, demographics, open and click through rates, and other means. One of the most popular SMS campaigns companies engage is birthday promotions.  This is an easy way to personalize this personal yet informal marketing platform. Plus, you can A/B test the effectiveness of your campaigns once you’ve obtained the data. Know the Rules, Get Express Consent, and Make it Clear How to Opt-Out We’ll cover this topic in full in the next section. That’s how important it is. So, remember, there are laws passed by the FCC by way of the Telecommunications Consumer Protection Act.  And they need to be followed. The #1 rule you will hear is obtaining “express consent.” In other words, you must get permission from mobile users to send your message. Otherwise, you’re breaking the law and spamming people.  That doesn’t just hurt you. It hurts other marketers and gives the platform a bad rap.  We’ve seen it happen with email marketing. There are lots of ways to get customers’ express consent. You can obtain short codes, check-off boxes on websites and emails, direct mail, and opportunities in social media sites. And like email, be clear about how to opt-out.  Use “Reply STOP to Unsubscribe” in your text. As an example, prospective claimants on attorney landing pages can give consent under the call to action to submit their information.

    

3. Fundamental Steps: How Can I Begin an SMS Text Message Marketing Promotion?

   
   If you think you’re ready to begin an SMS marketing campaign, here are some steps to follow:

   1. Determine the purpose. Part of this will be based upon your business and the opportunities available. Can you use coupon codes and sweepstakes for increased exposure?  Can you upsell?  Do you need to improve conversions from appointment setting?  These are questions you need to ask.  If you’re an attorney looking for personal injury leads for sale, see if you’re lead generation company has an SMS text message marketing auto-response and drip campaign that could increase contact and retention rates. It’s the perfect fit!
   2. Determine your target market. You’ve probably already done this, generally speaking. But you need to differentiate your prospects from your clients because the message likely will be different.  Then segment further within those audiences.
   3. Review your competition. Take a look at what your competitors are doing and see how their campaigns may perform for your business.  You don’t always need to reinvent the wheel.
   4. Create messages that match your goals. The first three steps are prerequisites to this step and provide a framework for your SMS campaign.
   5. Get permission. Naturally, you’ll need express written consent.  We’ve covered that ad nauseum, which should tell you the importance of this step.
   6. Follow the regulations and guidelines. You need to provide opt-out methods, send during certain times of the day, include certain statements, among other things.
   7. A/B test. You will need to try different messages and monitor results.  Just like any other digital marketing channel, you never know what works best until you try it.
   8. Make adjustments. Once you’ve gathered the results, you’ll know what works best and be positioned to refine your message.

4. How Can Attorneys and Businesses Maintain SMS Text Message Compliance?
   

   
   Anyone who markets their products and services via sms text messaging could benefit from this information in the U.S.

   For example, attorneys responding to personal injury leads via auto-response text messages to retain prospective claimants, retail companies promoting sales to customers, and bars and restaurants announcing happy-hours specials and buffets to diners.

   Broadly speaking, if you perform automated telephone dialing for your SMS campaigns, then you’re under the purview of the TCPA, which was developed by the FCC.

   Nonetheless, non-commercial communicationsUnder such circumstances, you will also be within the scope of the CTIA and MMA.

   1. What is the FCC?
      

      The FCC stands for Federal Communications Commission, which is a United States government agency overseen by Congress.  The agency has “primary authority for communications law, regulation and technological innovation” that effectuated the TCPA. Regulations passed by way of traditional notes and comments procedures can be found under Title 47 Rules & Regulations (CFR).

       

   2. How does the TCPA relate to SMS Text Message Compliance?
      

      The TCPA is designed to stop companies from spamming consumers. That said, the two main components businesses should remember are: You need “prior express written consent” from a mobile user prior to texting them. This can be achieved verbally or in writing[1]. That user must, at any time, must be able to revoke their consent and not receive future texts.  Simply sending the word STOP is all that is needed; however, one confirmation text is allowed[2].

       

   3. What is the CTIA?
      

      The CTIA, originally meant Cellular Telecommunications Industry Association, then changed to Cellular Telecommunications and Internet Association after merging with the Wireless Data Forum. As of 2004, the name stands for CTIA – The Wireless Association. The industry association promulgates guidelines rather than rules that can be enforced in a court of law.  However, violating their guidelines can influence carriers willingness to service your account and restrict your ability to send messages. The group claims to advocate for regulations that effectuate.

   4. What is the MMA?
      

      The MMA, or Mobile Marketing Association, is a global non-profit association that is 800-members large. It includes marketers and providers of mobile technologies.

   5. What is an ATDS?
      

      This is a great question. In 2012, the FCC determined that text messages were synonymous with phone calls.  Further, that technology that broadcast texts were no different than ATDS’s . . . and that meant text messages applied to the TCPA. So, the answer to this question is important. Why?  Because to fall within the scope of the TCPA you must be using an ATDS, which is an automated telephone dialing system.  Accordingly, auto-dialers and predictive dialers fall within this definition. Per the TCPA, an ATDS is “equipment that has the capacity to (a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers.” The key term in this definition is “capacity” because a Declaratory Judgment from 2015 ruled that a device is an autodialer if it “generally has the capacity to store or produce, and dial random or sequential numbers” even if it does not “currently” or “presently” have the ability to do so.

   6. What is the history of SMS Text Message Marketing Compliance?
      

      SMS text messaging laws can be complicated and have frequent changes. Substantially, they come from the Telephone Consumer Protection Act of 1991, which was passed a year before the SMS was invented. In 2012, the FCC officially determined that texts were synonymous to phone calls when initiated from an ATDS, and therefore fell within the scope of the laws propagated by the TCPA.  This decision would be effective October 16, 2013. In July of 2015, the FCC released the TCPA (Telephone Consumer Protection Act) Omnibus Declaratory Ruling (30 FCC Rcd 7961 (10)) that provided clarification and guidance regarding SMS text message marketing  for commercial and non-commercial use.

   7. What is the Latest News On SMS Text Messaging Compliance?
      

      On December 12, 2018, the FCC issued a ruling that reclassified SMS and MMS text messages as “information services” under Title I of the Communications Act. Previously, SMS and MMS texts were subject to regulations under Title II as “telecommunications services,” which is like phone calls.  That was prior to the December 12th determination. Now, this ruling allows “wireless providers to continue taking action to protect American consumers from unwanted text messages.” In other words, carriers may block messages from consumers and business they determine are spam.  But, in reality, that’s nothing new. It has meaning because classifying text messages as a telecommunications service provides a regulatory obstacle for carriers to block spam messages.  Reclassifying SMS and MMS makes it easier now. This is being framed by the FCC as a consumer protective measure. But consumer advocates are critical because, arguably, it could impede freedom of speech.  This ruling allows carriers to monitor and block content for their own business or political benefit. Think that viewpoint is a stretch? Well, think again. In 2007, Verizon supposedly blocked messages from an abortion-rights association (NARAL) to its members.

   8. What Other Relevant Case Law Exists for SMS Text Message Marketing and Compliance?
      

      Marks v. Crunch San Diego, LLC 55 F. Supp. 3d 1288, (Sept. 21, 2018) In this case, the Ninth Court of Appeals concluded that Congress – through the TCPA – intended to regulate devices that make automatic calls, including automatic calls dialed from lists of recipients, rather than solely phone numbers that equipment randomly or sequentially generated. Luna v. Shac LLC, No. 5:2014cv00607 Doc. 104 (N.D. Cal. 2015) This case has precedential value since it solidified the FCC’s Declaratory Judgment regarding its definition of an ATDS under the TCPA. Edmund Pietzak et al v. Microsoft Corporation, No. 2:15-cv-05527 (Cen.D. Cal 2015) The relevance of this case is that marketers have more confidence in obtaining valid “prior express written consent.” The Court rejected plaintiff’s claims of any violation of law by determining Microsoft properly obtained such consent. Specifically, Judge mentioned, “Plaintiffs voluntarily sought specific information about Microsoft promotions, providing both their phone numbers and their express consent to receive that information by texting specific keywords from their mobile phones. There is no cognizable legal theory that could support liability against Defendants, and dismissal with prejudice is appropriate.”        4. Tucker v. Quicken Loans Inc., No. 2:19-cv-00017-DJH (U.S.D.C Ariz.) This is the most recent class action lawsuit (January 2019) pursuing damages under the TCPA of $500 for negligent violations and $1,500 for willful or knowing violations, as well as injunctive relief, court costs, and attorneys’ fees. Plaintiff Carrie Tucker alleges she received multiple SMS text messages starting in January of 2015, which were all absent her express written consent.  Additionally, she claims others were victims of the TCPA violations that lacked consent.  She plans to be the lead Plaintiff in the class action. Further, she alleges Quicken Loans used auto dialers that have the capacity to send unsolicited text messages, which makes her case within the scope of a TCPA violation. According to the Quicken Loans class action,“Defendant transmitted the text messages at issue in this case to Plaintiff and all other putative class members in an automated fashion and without human intervention, with hardware and software that received and stored lists of telephone numbers and which then dialed such numbers automatically.” The case is presided by Judge Diane J Humetewa.

   9. How Can Attorneys, Retailers, and other Businesses Stay Compliant with FCC and CTIA?
      

      Get prior express written consent. This is an FCC regulation. Along these lines, consent must be “unambiguous” and “tell consumers the telemarketing will be done with autodialer equipment and that consent is not a condition of purchase.”   Consent will be based upon whether the business “maintain proper business records” and “the veracity of such business records is a matter for triers of fact to decide.” As indicated in the ESIGN Act, the required signature may be obtained via e-mail, website form, text message, telephone key press, or voice recording. Prior written consent may not be needed in an emergency.  Consent Send texts at proper times. Text or voice solicitation messages must be sent between 8:00 am and 9:00 p.m. Allow users the ability to opt-out. Consumers need to be able to unsubscribe. Consumers may revoke consent by any reasonable means, and marketers are not allowed to restrict the manner in which consumers may withdraw consent. Additionally, the TCPA carries a four-year limitations period, so keeping records[3] over that time frame is advisable. Understand other areas of potential liability. To be legally responsible for the text, a person or entity must take specific steps to generate the ATDS communication or be substantially involved.  If the call is from the provider of an app with these capabilities, it is not responsible for corresponding replies from the mobile phone user. And, an app provider is the initiator of invitation text messages when sent through an ATDS automatically. However, an app provider is not considered to be the initiator of the text when the end user sends an invitation, even if the content was created by the app provider. Auto-response texts have exceptions to standard disclosures. According to the Declaratory Ruling, “a one-time text sent in response to a consumer’s request for information does not violate the TCPA or the Commission’s rules so long as it: (1) is requested by the consumer; (2) is a one-time only message sent immediately in response to a specific consumer request; and (3) contains only the information requested by the consumer with no other marketing or advertising information.”  Significantly, express consent is still required. Include proper information. If the TCPA doesn’t require the following guidelines, CTIA does.  You will need to include the identity of the sender, the coupon or value proposition, the frequency of messages per month, proper carrier costs and fees, an option for help, and an option to unsubscribe as detailed above. Subscriptions. Advertisements must unambiguously state whether the marketing is subscription-based, including terms and billing intervals. If the service is “free” then premium fees should not be included in the same. Financial and Healthcare exceptions. Financial and healthcare entities may be exempt from written consent requirements since, generally, they are expected and desired by users. If the message is “urgent” based upon fraud, identity theft, and money transfers, this exception could apply.

   10. What Happens If I Violate the TCPA?
       

       Violators could face financial penalties between $500 and $1,500[4]. For perspective on how the per violation can get, Papa John’s forked out a whopping $16.3 million to settle a class action suit after it sent unsolicited text messages promoting its pizza.

   Law Firms, Retailers and Other Merchants Can Be Highly Successful with SMS Marketing For Lead Generation and Exposure

   
   SMS text message can be a proficient marketing channel when laws and guidelines are followed.

   Attorneys can convert more clients from personal injury lead generation companies, restaurants can lure more diners, retailers can generate more sales, and companies can increase brand exposure.

   And, with the onset of MMS marketing, more opportunity awaits for those at the forefront of this personal and informal direct response marketing channel.

   __________________

   [1] According to a 2013 FCC Compliance Guide: “Prior Express Written Consent: … consent obtained in compliance with the E-SIGN Act will satisfy the requirements of its revised rule, including permission obtained via an email, website form, text message, telephone keypress, or voice recording.”

   [2] See paragraph 64: “Consumers have a right to revoke consent, using any reasonable method including orally or in writing. Consumers generally may revoke, for example, by way of a consumer-initiated call, directly in response to a call initiated or made by a caller, or at an in-store bill payment location, among other possibilities. We find that in these situations, callers typically will not find it overly burdensome to implement mechanisms to record and effectuate a consumer’s request to revoke his or her consent. We conclude that callers may not abridge a consumer’s right to revoke consent using any reasonable method. The Commission has concluded as much for certain telemarketing calls, as our rules require that telemarketing calls using a prerecorded or artificial voice “provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request” and leave a “toll free number that enables the called person to call back at a later time” if the call is answered by voicemail. And when the Commission granted an exemption from the TCPA in the Cargo Airline Order, it required that callers give consumers a direct opt-out mechanism such as a key-activated opt-out mechanism for live calls, a toll-free number for voicemails, and a reply of “STOP” for text messages. The common thread linking these cases is that consumers must be able to respond to an unwanted call— using either a reasonable oral method or a reasonable method in writing—to prevent future calls.”

   [3] “The well-established evidentiary value of business records means that callers have reasonable ways to carry their burden of proving consent. We expect that responsible callers, cognizant of their duty to ensure that they have prior express consent under the TCPA and their burden to prove that they have such consent, will maintain proper business records tracking consent.” Paragraph 70 of Omnibus Declaratory Ruling.

   [4] The following is from the TCPA guidelines:
   (3) PRIVATE RIGHT OF ACTION.—A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
   (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
   (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
   (C) both such actions. If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.